Election Law @ Moritz

Recent Opinion Articles

Edward B. Foley
Free & Fair is a collection of writings by Edward B. Foley, one of the nation's preeminent experts on election law.

Opinion and Analysis

Ohio Elections Need Unbiased Referee

Print Page

September 24, 2005

Reprinted with permission by the Columbus Dispatch

Buckeyes fans wouldn't like it if the head referee for today's game was on Iowa's coaching staff. Yet, amazingly, that's how we run elections here in Ohio.

Secretary of State J. Kenneth Blackwell was in charge of enforcing Ohio's election rules during the 2004 campaign, yet at the same time he was heading up President Bush's re-election effort in this state. Whether Blackwell, as chief elections referee, intentionally made some calls in favor of Bush is not the point. Rather, there's a huge appearance problem: Every time Blackwell made a decision that favored the Bush campaign, the other side immediately suspected Blackwell's motives.

Mistrust of the ref is worse in politics than sports because the losing side thinks that the ref is not merely incompetent but crooked. Remember all those people who thought that five Supreme Court justices intentionally gave the 2000 election to Bush just because they were appointed by Republican presidents? The Democrats' distrust of Blackwell is even deeper. After all, whereas Supreme Court justices never endorse candidates, Blackwell trumpeted his endorsement of Bush. How can anyone think he's in a position to be a fair referee?

Not surprisingly, then, a bipartisan commission led by former President Jimmy Carter and former Secretary of State James A. Baker III has recommended, in its report issued this week, that states like Ohio do one of two things: either transform the office of secretary of state into a nonpartisan position or transfer the function of supervising the state's elections to a separate nonpartisan office.

The voters of Ohio will have an opportunity to adopt this recommendation in November. On the ballot is an initiative, one of several sponsored by Reform Ohio Now, that would take the job of supervising elections away from Blackwell's office and put it in the hands of a new ninemember Board of Elections Supervisors.

Four members would be appointed by the governor, and four more by the members of the General Assembly who belong to whichever major political party isn't the governor's. The ninth member of this board would be selected by a unanimous vote of Ohio's Supreme Court, and this final member must have been unaffiliated with any political party for the previous 10 years.

The idea is that the ninth member will guarantee nonpartisanship.

This proposed nine-member board differs in design from the Carter-Baker commission's suggested way of achieving nonpartisanship. The commission's simpler suggestion is to have a single elections official, either the secretary of state or a new chief elections officer, appointed by the governor upon approval by twothirds of the state's legislature (either one or both houses). Neutrality is assured under this alternative as long as no single party dominates the legislature to this extent. An even greater guarantee would be to require the legislative leaders from both major parties to approve the appointment.

The commission's suggestion is preferable to the Reform Ohio Now proposal. A single elections referee for the state is better-suited than a nine-member board to the task of resolving disputes that arise in the midst of an election. It's not the job of the referee to make policy, for which several different points of view on a multi-member board would be useful. Instead, the referee is just supposed to enforce the rules that should be as clearly spelled out as possible by the General Assembly. Moreover, the referee is likely to make a lot of specific decisions enforcing these rules over the course of each election campaign, and it would be a lot more efficient to have these decisions made by a single umpire rather than a nine-member committee. You wouldn't want a ninemember committee calling balls and strikes behind home plate, and the same goes for the state's elections referee.

Even so, voters should approve this initiative. It is far better than the current situation, and it is the only vehicle that voters have this year to change the system. Going into 2006, with the upcoming races for governor and the other statewide offices, and especially in the wake of all the recent scandals, it is imperative that Ohio have in place some form of nonpartisan election referee whom both Democrats and Republicans can trust to decide disputes fairly. Although unnecessarily cumbersome, the nine-member board proposed in this initiative passes the essential test of neutrality.

If adopted, no more will Ohioans suffer from the unacceptable situation in which the job of supervising the political contest between Democrats and Republicans is given to a leader of one of these two teams.